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Commercial Issues in Private International Law Conference

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Commercial Issues in Private International Law Conference Commercial Issues in Private International Law Conference Friday 16 February 2018 9am – 5.20pm Sydney Law School New Law School Building (F10), Eastern Avenue Camperdown, The University of Sydney CRICOS 00026A Commercial Issues in Private International Law In its 2017 report on The Future of Law and Innovation in the Profession, the Law Society of New South Wales recognised that ‘[a]n increase in cross-border transactions and disputes mean that a knowledge of private international law is increasingly important to the practice of law’. Such statements have been made before. They continue to hold true. With that in mind, on 16 February 2018, the University of Sydney Law School will convene a conference on Commercial Issues in Private International Law. The program will bring together members of the judiciary, the profession, and academia to discuss private international law as it relates to commercial law in Commonwealth jurisdictions. The pages that follow detail a program which deals with fundamental and current problems for private international law. In their keynotes, Dickinson and Yeo will consider jurisdiction over absent defendants, and the rise of party autonomy, respectively. Across four sessions, panellists will consider the fundamental issues of private international law – jurisdiction, choice of law, and recognition and enforcement of foreign judgments – as well as practical matters of evidence and proof. There will be a dedicated session on developments at the Hague Conference on Private International Law, and how those developments could impact Australian commercial law in 2018. The program will be bookended by speeches by Justice Rares and Justice Brereton. The program should be of interest not merely to scholars in this area, but also to practitioners who deal with cross-border issues in the course of their practice. CPD points are available for attendees. We hope that you will join us in February to discuss this increasingly important area of law. Vivienne Bath and Michael Douglas Conference Convenors CRICOS 00026A Overview of Sessions 16 February 2018 9am – 5.20pm TIME SESSION 8.30am Registration 9.00am Welcome and Conference Opening: Rares 9.30am Keynote: Dickinson 10.15am Morning tea 10.45am Panel 1: Hague Developments 11.55am Panel 2: Choice of Law 1.10pm Lunch & Panel 3: Evidence and Proof 2.20pm Keynote: Yeo 3.05pm Afternoon tea 3.35pm Panel 4: Jurisdiction and Judgments 4.50pm Commentary: Brereton 5.20pm Close 5.30pm Drinks CRICOS 00026A Program 16 February 2018 8.30 – 9.00am Registration and refreshments 9.00 – 9.30am WELCOME Vivienne Bath, University of Sydney CONFERENCE OPENING Justice Rares, Federal Court of Australia 9.30 – 10.15am KEYNOTE Presentation title: In Absentia Keynote speaker: Andrew Dickinson, University of Oxford Chair: Vivienne Bath, University of Sydney 10.15 – 10.45am Morning tea 10.45 – 11.55am PANEL 1 Developments at the Hague Conference on Private International Law Chair: Michael Douglas, University of Sydney Mary Keyes, Griffith University Melissa-Jane Ford, Attorney-General’s Department Brooke Adele Marshall, Max Planck Institute 11.55am – 1.10pm PANEL 2 Choice of Law Chair: James Stellios, Australian National University Benjamin Hayward, Monash University Maria Hook, University of Otago Michael Douglas, University of Sydney 1.10 – 2.20pm LUNCH & PANEL 3 Evidence and Proof Chair: Albert Dinelli, Victorian Bar Dominique Hogan-Doran, NSW Bar Donald Robertson, Herbert Smith Freehills Andrew Bell, NSW Bar 2.20 – 3.05pm KEYNOTE Presentation title: The Rise of Party Autonomy in Commercial Conflict of Laws Keynote speaker: TM Yeo, Singapore Management University Chair: Vivienne Bath, University of Sydney 3.05 – 3.35pm Afternoon tea 3.35 – 4.50pm PANEL 4 Jurisdiction and Judgments Chair: Justin Hogan-Doran, NSW Bar Jeanne Huang, University of New South Wales Reid Mortensen, University of Southern Queensland Vivienne Bath, University of Sydney 4.50 – 5.20pm COMMENTARY Justice Brereton, Supreme Court of New South Wales 5.20 – 5.30pm Close 5.30pm - Drinks CRICOS 00026A CONTRIBUTORS Professor Vivienne Bath University of Sydney Panel presentation: Service out of the jurisdiction and the issue of overlapping jurisdictions The recent expansion of the rules of NSW, Victoria, South Australia and the ACT on service outside the jurisdiction is directed at harmonization with the New Zealand rules. It also potentially opens up even more avenues for jurisdictional overlap between Australian and foreign courts. This paper reflects on some of these issues and the possibilities for their resolution. Vivienne Bath is Vivienne Bath is Professor of Chinese and International Business Law at the University of Sydney Law School, where she teaches private international law. She is also Director of the Centre for Asian and Pacific Law and Director of Research at the China Studies Centre. She has published widely on Chinese law with a focus on investment and commercial law. Her most recent publication in the area of private international law is ‘Overlapping Jurisdiction and the Resolution of Disputes before Chinese and Foreign Courts’ (2015-2016) 17 Yearbook of International Private Law 111-150 (November 2016). Dr Andrew Bell SC NSW Bar Panel presentation: Some aspects of foreign evidence gathering in a commercial case: familiar problems and recent developments (with Donald Robertson) With transnational disputes ever on the increase, and broad rules for the assumption of jurisdiction and a relaxed inappropriate forum test firmly embedded in rules of court and caselaw, one of the remaining problematic and cumbersome issues for those engaged in transnational dispute resolution concerns the obtaining of evidence from abroad. Formal processes can entail both great delay and expense, inimical to the efficient resolution of disputes, and doctrinal constraints related to respect for territorial sovereignty and comity can impede developments in the case law. These themes will be illustrated by reference to a series of recent cases, and point to the need for institutional arrangements that facilitate the efficient disposition of disputes by making national borders less intrusive as an element in the overall approach. Andrew Bell has a broad national practice and has appeared in almost 30 High Court appeals across a broad range of fields, and in numerous special leave applications. He also regularly appears in the New South Wales and Western Australia Courts of Appeal and the Full Court of the Federal Court, as well as at first instance and in domestic and international arbitrations. His practice includes corporate and commercial litigation, class actions, general appellate matters, public and constitutional law including electoral law, sports law and shipping and transport disputes. He specializes in private international law and transnational litigation and arbitration, in which areas he has taught and written extensively. He has also acted as an arbitrator and appeared in many domestic and international arbitrations. He has regularly been named in the Litigation, Alternative Dispute Resolution and Bet-the-Company Litigation categories in the annual AFR survey of top Australian lawyers, and is ranked Band 1 of all Australian barristers by Chambers Asia Pacific. He is co-author of Nygh’s Conflict of Laws in Australia (LexisNexis, 9th ed, 2014), with Martin Davies and Paul Brereton, and is author of Forum Shopping and Venue in Transnational Litigation (OUP, 2003). CRICOS 00026A The Honourable Justice Paul le Gay Brereton AM RFD Supreme Court of New South Wales His Honour will comment on the day’s proceedings Justice Brereton was educated at the University of Sydney, admitted as a solicitor in New South Wales in 1982, called to the Bar in 1987 and appointed Senior Counsel in 1998. At the Bar, he had a diverse general practice. In 2005, he was appointed a Judge of the Supreme Court of New South Wales, where he is assigned primarily to the Equity Division, and is the Corporations List Judge and Adoptions List Judge. He is also the judge with oversight of the Costs Assessment Scheme. He is also a member of the Harmonisation of Rules Committee, and occasionally sits in the Family Provision List. Since 2013 he has been a member of the Defence Force Discipline Appeals Tribunal. He was appointed a part- time Commissioner of the NSW Law Reform Commission on 1 June 2016 and Deputy Chairperson on 1 July 2016. He is one of the three authors of the current (ninth, 2014) edition of Nygh’s Conflict of Laws in Australia, and the revising author of the Conflict of Laws title in Halsbury’s Laws of Australia. As a Defence Reservist, he was Head of Reserves in the rank of Major General and he is currently an Assistant Inspector General of the Australian Defence Force. Professor Andrew Dickinson University of Oxford Keynote presentation: In Absentia From the early 19th Century, Australia's legal systems have wrestled with the problem of absent defendants: how to balance the competing demands of justice between a claimant who might otherwise be left without an effective remedy when a transaction turns sour and a defendant at risk of being condemned without the opportunity to learn of the case against him and to be heard. This paper traces the development of the rules governing such cases, with a focus on the law and procedure of New South Wales, before turning to consider whether the currently applicable rules are fit for purpose. Andrew Dickinson is Professor of Law at the University of Oxford. He joined the Faculty in 2013, and is a fellow of St Catherine’s College. From 2011-2013, Dickinson was Professor of Private International Law at the University of Sydney. He is one of the contributing editors of Dicey, Morris & Collins on the Conflict of Laws, the author of a well-regarded work on the Rome II Regulation, and is co-editor of Australian Private International Law for the 21st Century – Facing Outwards (Hart, 2014), with Keyes and John.
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